Australian Integrated Finance Pty Ltd v Berry Hardware Store Pty Ltd & Anor [2006] NSWSC 1376

New South Wales Supreme Court

CITATION : Australian Integrated Finance Pty Ltd v Berry Hardware Store Pty Ltd & Anor [2006] NSWSC 1376

HEARING DATE(S) : 07/12/2006

JUDGMENT DATE : 15 December 2006

JUDGMENT OF : Associate Justice Malpass

DECISION : The appeal is allowed. The decision of the Magistrate given on 20 June 2006 is set aside. The plaintiff is entitled to the entry of judgment against the defendants. The amount of the judgment is to be calculated by the parties. The defendants are to pay the costs of the summons. If so entitled, the defendants are to have a certificate under the Suitors' Fund Act 1951 (NSW).

CATCHWORDS : Rental by pl of ATM to 1st def pursuant to finance arrangement - performance of agreement by 1st def guaranteed by 2nd def - ATM never operational - issue as to return of goods and refund of monies - finding by Magistrate of mutual termination of agreement - appeal to Supreme Court - matter remited back to Local Court - further judgment of Magistrate - lack of evidentiary support for resuolt reached - onus on def not discharged.

LEGISLATION CITED : Suitors' Fund Act 1951 (NSW)

Australian Integrated FInance Pty Ltd PARTIES : Berry Hardware Store Pty Ltd Warren John Baines

FILE NUMBER(S) : SC 13366/06

COUNSEL : Mr P Mc Dowell (Pl) Mr K Morrissey (Def)

SOLICITORS : Simons Ravden Lawyers (Pl) Lindsay Brien Solicitors (Def)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 11/05

LOWER COURT JUDICIAL OFFICER : Dick LCM

LOWER COURT DATE OF DECISION : 27/10/2005

LOWER COURT MEDIUM NEUTRAL CITATION : Australian Integrated Finance Pty Ltd v Berry Hardware Store Pty Ltd & Warren John Baines